The Supreme Court Shamed The Most Anti-Abortion Court In The Country With Just 14 Words

— by Ian Millhiser

Credit: AP photo/Michael Dwyer

Friday afternoon, the Supreme Court handed down a very brief order allowing several Louisiana abortion clinics to reopen after a conservative federal appeals court forced them to shut down. Yet, while the Supreme Court’s order was very short — only slightly more than a paragraph long — it contained 14 more words than such an order normally would. And those 14 words appear to be a direct swipe at the appeals court that shut down Louisiana’s clinics in the first place.

To explain, the conservative United States Court of Appeals for the Fifth Circuit has handed down a series of decisions that appear calculated to dismantle nearly all of Roe v. Wade within the three states (Louisiana, Mississippi and Texas) overseen by that court. In 2015, for example, the Fifth Circuit’s decision in Whole Woman’s Health v. Cole gave states sweeping power to restrict abortion, so long as the restriction is dressed up as a health regulation. Among other things, this opinion blessed a provision of Texas law requiring abortion clinics to undergo expensive renovations in order to comply with regulations governing “ambulatory surgical centers,” even if the clinic does not actually perform any surgeries. Many Texas abortion clinics only offer medication abortions, which are induced by pills the woman takes orally.

An appeal of this Whole Woman’s Health decision is currently pending before the justices, and a majority of the Court appeared skeptical of the Fifth Circuit’s decision at oral arguments last Wednesday.

Just one week before the Supreme Court heard these arguments, however, the Fifth Circuit handed down another anti-abortion decision. In June Medical Services v. Gee, the Fifth Circuit granted an “emergency” motion reinstating a Louisiana law that was expected to shut down all but one of that state’s abortion clinics. The Louisiana law at issue in June Medical Services closely resembles a provision of the Texas law at issue in Whole Woman’s Health.

The Fifth Circuit’s order in June Medical Services was surprising, largely because the Supreme Court had already dropped some pretty big clues that a majority of the justices disapprove of the Fifth Circuit’s decisions forcing abortion clinics to close. Among other things, the justices stayed the Fifth Circuit’s Whole Woman’s Health decision pending the Supreme Court’s own resolution of the case — effectively enabling many Texas abortion clinics to remain open that would be closed if the Fifth Circuit’s order were still in effect.

Nevertheless, the Fifth Circuit decided not to take the hint that Texas-style attempts to shut down clinics should be placed on hold. Instead, the Fifth Circuit claimed in June Medical Services that it was free ignore this hint because, when the Supreme Court stayed Whole Woman’s Health, it did so in a brief order without explaining its reasoning. “No guidance can be gleaned from the Supreme Court’s vacating portions of the stay without explanation,” according to the lower court, “as we cannot discern the underlying reasoning from the one-paragraph order.”

Which brings us back to the 14 significant words in the Supreme Court’s most recent order. “Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole,” that order begins, the Fifth Circuit’s order reinstating the Louisiana law is vacated.

These 14 words are a subtle spanking, but they are a spanking nonetheless. They directly contradict the Fifth Circuit’s claim that it can ignore the Supreme Court’s previous stay orders if the lower court “cannot discern the underlying reasoning” behind those orders. And they rebut the Fifth Circuit’s logic on its own terms. Why shouldn’t lower courts allow Texas-style abortion restrictions to go into effect in the future? Because halting these laws is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.”

To be clear, it is normally a dangerous practice to read too much into a one-paragraph order like the one the Supreme Court handed down Friday. This order provides only a limited window into the Court’s thinking, and it deals only with a preliminary issue facing the Fifth Circuit in June Medical Services. The conservative appeals court will have another opportunity to hear this case, and that will give it another opportunity to make mischief for abortion providers.

But the Supreme Court is now signalling very loudly that a majority of the Court is not pleased with the Fifth Circuit’s efforts to pare Roe v. Wade down to near nothingness. If the lower court’s judges do decide to make more mischief, they will probably wind up on the receiving end of yet another judicial spanking.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

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It’s Women’s History Month—So Naturally—Republicans Wage Sneak Attack

By CAP Action War Room

The Latest Ploy in The Ongoing Attack on Women’s Health

PoisonPill08
GOP breaks out their favorite Poison Pill … Again!

Women’s access to basic health care continues to be under attack at both the state and federal level. The most recent threat came this week when Republican lawmakers in the Senate snuck anti-choice provisions into a bipartisan bill aimed at helping victims of human trafficking. The Justice for Victims of Trafficking Act of 2015 (S. 178), which would establish a fund for victims of human trafficking, wasn’t supposed to be controversial. In fact, it enjoyed wide bipartisan support until Senate Democrats discovered that Republicans added language that would restrict federal funding for abortion–even forcing underage victims of rape to carry their pregnancies to term. Democrats have now vowed to hold the entire bill until the anti-choice language is removed.

The Justice for Victims of Trafficking Act is just the latest attempt to restrict women’s reproductive rights on the national level. Unfortunately, actions on the state level are even worse. Last week, West Virginia Republicans overrode a gubernatorial veto and passed a 20-week abortion ban. With the veto override, West Virginia became the 11th state to prohibit abortions past 20-weeks, despite the fact that over the last few years courts have blocked several 20-week abortion bans for violating protections offered under Roe v. Wade. Montana and New Mexico are among other states considering 20-week bans under the guise of “fetal pain,” which scientists agree does not exist. And earlier this month, Wisconsin Governor and likely 2016 presidential candidate Scott Walker also said he would sign a 20-week ban.

While Democrats have been able to prevent anti-choice language from creeping into federal law thus far, these state-based corrosive efforts are working. A ThinkProgress investigation found that the maze of state abortion restrictions, usually framed as legal regulations, is driving the price of abortion services up so high that lower-income women are effectively priced out of the market. The attack on women’s healthcare has gone so far that a Texas Republican legislator has protested her colleagues’ proposal to cut funding for cancer screenings at Planned Parenthood clinics, saying that without that “provider network, women cannot be served. And they will die.”

BOTTOM LINE: From trying to shut down the Department of Homeland Security, to undermining international agreements with Iran, to voting 56 times to repeal the Affordable Care Act, the Republican Party has proven it is unfit to govern. These recent threats to women’s health are just another example of how out-of-touch and dangerous GOP policies can be.

As an aside:  Senator Heller has submitted an amendment (S.Amdt 283) to this bill, however, the text of his amendment has not yet been posted to Congress.gov.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.  Like CAP Action on Facebook and follow us on Twitter.

Denouncing NSA Surveillance Isn’t Enough—We Need the Power to Stop It

— by Norman Solomon

For more than a month, outrage has been profuse in response to news about NSA surveillance and other evidence that all three branches of the U.S. government are turning Uncle Sam into Big Brother.

Now what?

Continuing to expose and denounce the assaults on civil liberties is essential. So is supporting Bradley Manning, Edward Snowden and other whistleblowers—past, present and future. But those vital efforts are far from sufficient.

At the core of the surveillance state is the hollowness of its democratic pretenses. Only with authentic democracy can we save ourselves from devastating evisceration of the First, Fourth and Fifth Amendments.

imageFor a moment, walk a mile in the iron-heeled shoes of the military-industrial-digital complex. Its leaders don’t like clarity about what they’re doing, and they certainly don’t like being exposed or denounced—but right now the surveillance state is in no danger of losing what it needs to keep going: power.

The huge digi-tech firms and the government have become mutual tools for gaining humungous profits and tightening political control. The partnerships are deeply enmeshed in military and surveillance realms, whether cruise missiles and drones or vast metadata records and capacities to squirrel away trillions of emails.

The enormous corporate leverage over government policies doesn’t change the fact that the nexus of the surveillance state—and the only organization with enough potential torque to reverse its anti-democratic trajectory—is government itself.

The necessity is to subdue the corporate-military forces that have so extensively hijacked the government. To do that, we’ll need to accomplish what progressives are currently ill-positioned for: democratic mobilization to challenge the surveillance state’s hold on power.

These days, progressives are way too deferential and nice to elected Democrats who should be confronted for their active or passive complicity with abysmal policies of the Obama White House. An example is Al Franken, senator from Minnesota, who declared his support for the NSA surveillance program last month: “I can assure you, this is not about spying on the American people.”

The right-wing Tea Party types realized years ago what progressive activists and groups are much less likely to face—that namby-pamby “lobbying” gets much weaker results than identifying crucial issues and making clear a willingness to mount primary challenges.

Progressives should be turning up the heat and building electoral capacities. But right now, many Democrats in Congress are cakewalking toward re-election in progressive districts where they should be on the defensive for their anemic “opposition” to—or outright support for—NSA surveillance.

Meanwhile, such officials with national profiles should encounter progressive pushback wherever they go. A step in that direction will happen just north of the Golden Gate Bridge this weekend, when House Democratic Leader Nancy Pelosi appears as guest of honor to raise money for the party (up to $32,400 per couple) at a Marin County reception. There will also be a different kind of reception that Pelosi hadn’t been counting on—a picket line challenging her steadfast support for NSA surveillance.

In the first days of this week, upwards of 20,000 people responded to a RootsAction.org action alert by sending their senators and representative an email urging an end to the "Insider Threat Program"—the creepily Orwellian concoction that, as McClatchy news service revealed last month, “requires federal employees to keep closer tabs on their co-workers and exhorts managers to punish those who fail to report their suspicions.”

Messages to Congress members, vocal protests and many other forms of public outcry are important—but they should lay the groundwork for much stronger actions to wrest control of the government away from the military-industrial-digital complex. That may seem impossible, but it’s certainly imperative: if we’re going to prevent the destruction of civil liberties. In the long run, denunciations of the surveillance state will mean little unless we can build the political capacity to end it.


This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License (Photo Credit: David Burnett/Contact Press Images)

Norman Solomon

Norman Solomon is co-founder of RootsAction.org and founding director of the Institute for Public Accuracy. His books include “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death” and "Made Love, Got War: Close Encounters with America’s Warfare State".